fandomsecrets | [ SECRET POST #2868 ]

[ SECRET POST #2868 ]

⌈ Secret Post #2868 ⌋

Warning: Some secrets are NOT worksafe and may contain SPOILERS.

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Notes:

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Is this even legal? I mean, this person is directly profiting from someone else's IP, unless it's a fandom for something out of copyright.

Fanartists are paid for commissions all the time. Don't see why this would be different.

I know it's not a popular opinion, but I think it's shitty for fanartists to take commissions for fanart, too. Especially if it's ultimately mass/majorly produced like prints or slapping the fanart on bags, bookmarks, etc.

Agreed, but I gotta appreciate that fanartists managed where fanfic writers never could.

Its because the art model of economics comes from different routes than literary does. The way literary economics works is that it is mostly evolved from stage plays and playrights (and their, often Royal, backers) were redhot on who gets compensated for coming up with a story. Within the art world (meaning paintings/drawings etc.), it was seen as contributing to the pool of common culture from which others were as free to draw. The case law for the two, and the cultural consensus, has travelled along different paths. For things like comics and mangas, this created some problems.

Not too much into the comic scene, would you mind elaborating some on those issues?

Well it being a partly visual partly literary just means that it has a fanbase which has massively opposing views on whether it is acceptable to do things like fancomics and the japanese name for fancomics.

I think they're both... legal gray areas at best. Okay, more like blatantly illegal.

But I do see it as more excusable to to sell a physical copy of fanart, at say, a convention. The justification being, it's the cost of print and supplies, not the cost of the actual art. Whereas a digital copy would have no print cost, whether fanfiction or fanart, so seriously is illegal.

The only thing I could think that would make it legally permissible is if it were a private transaction between friends for private use. Setting up a pseudo business to get commissions from around the Internet definitely wouldn't qualify.

I don't buy the cost of supplies argument. Maybe if the artist was actually selling their work literally "at cost"... but they rarely are, are they?

DA

Nor do I. Especially since most artists I've seen who offer commissions draw the art on tablets, already have their tablets that they use to draw with.

Exactly. If I'm making cookies for a bake sale, I don't add up the total cost of all the ingredients. I try to figure out the cost of the actual amount of ingredients used in the batch. For example, a 5 lb. bag of flour might cost $2.50, but I didn't use the whole bag in the cookies. Ditto a bottle of vanilla extract vs the 2 tsp. used. Or the cost of a dozen eggs vs. the cost of 1 egg. And I don't include the cost of the Kitchenaid mixer I used.

(no subject)

(Anonymous) - 2014-11-10 22:08 (UTC) - Expand

(no subject)

(Anonymous) - 2014-11-10 22:42 (UTC) - Expand

(no subject)

(Anonymous) - 2014-11-10 23:52 (UTC) - Expand

Well, no. Though they are also standing around manning a booth all weekend, to be fair. Some labor cost there, surely.

Even though I don't think it necessarily justifies selling a fanwork, there's at least some basis there that doesn't exist with selling digital art or fanfiction (unless you hypothetically printed and bound a fanfic to sell at a con, I suppose)

Tell you what

Let's just disregard all talent, time, and effort put into fanworks and focus entirely on physical materials, because that's how you price crafts in the real world.

...oh, wait, you don't.

(no subject)

(Anonymous) - 2014-11-09 23:00 (UTC) - Expand

well, the tablet pen's end needs changing if it's used a lot. So there's that.

The law sees artwork and written word very differently. There is a treatment of visual arts under copyright law in case law that treats being 'inspired' by the real world--including pop culture--and other art as inherent to art, combined with the assumption that the way one artist draws a character is distinctly different from other forms of it in a way that makes it distinct for copyright.
Which doesn't mean that fanart is totally legal, especially when you are dealing with *trademarked* characters, which is a totally different set of laws. Campbell's has admitted in recent years that they did speak Warhol and consider legal action but thought better of it--he was popular and it wasn't harming their brand. Artists who did do works closely related to existing art--pixel versions, or a sculpture based on a photo, have lost legal battles over them.
Creating an image that does not have a visual basis, however, has generally been allowed, as has been distinctly original images that don't directly relate to an existing image--though again, trademark is different. For one thing, a non-narrative media and a narrative media are seen as less able to claim competition between them.
And some of it is because the content owners have a tradition of looking the other way--the comic companies in particular have for a long time quietly allowed sold fanart so long as you didn't go mass producing it, as a way of new artists getting their start (after all, you have to have a portfolio of comic art to get a job with them).
As for doujinshi, Japan's copyright laws are different, and in particular treat commercial production and small press by different rules; it is also treated like US comics as a 'you learn by copying the masters' place to start.
Fanfic, however, is directly in the same medium, or a related but also narrative medium. Thus the most clearly illegal of all fanworks is the post canon story of a book--that's a sequel, and the law very clearly states it is the author's right to make sequels.

No, it's not legal. But in case you haven't noticed, lots of illegal IP infringement goes on around the internets.

I have commissioned stories from writers I love in the past. For charity auctions or directly if the mood struck me. I see absolutely no problem with it whatsoever. They are artists. I am a consumer of art. Call me the Pope. :D

And I'm not sure about it being illegal. The OTW has already made headway in establishing fanworks as transformative works. Still actionable, sure, but I don't think it's likely that, say, Marvel would come after a writer personally for making chump change on some AOS stories. Imagine the bad publicity.

Campbell's soup was an active copyright/trademark when Andy Warhol profited quite a bit from his soup cans.

Campbell's probably didn't sue because the paintings were mostly straightforward, like a giant ad for soup. The fact that they didn't is less about trademark law and more about Campbell's being smart enough to realize that the publicity wasn't hurting them, so they let it go. How a copyright holder will react to what, in their view, would be derivative works depends on the individual copyright holder.

Right. See above in re: bad publicity. I really think at this point going after a fan fiction writer would result in some bad mojo, depending on the fandom.

Campbell actually wrote a very nice letter to Warhol. And sent him tomato soup. <3

I would also say that Andy Warhol only painted pictures of Campbells soup, not produced his own soup and put it in Campbells labels. On fanfic, at least with canons that are from books, it's staying the same medium - written stories.

Good point. If Warhol had done that, Campbells and their lawyers would've been alllllllll over him in a hot minute.

It's a sticky gray area since the work is their own. They do all of the work, after all. It's only the characters that are not theirs, and it makes it a gray area for most people. I guarantee you, a lot of fanart would disappear or stop happening in, it certainly wouldn't be in the same volume that exists, without paid commissions because so many use it to supplement their income and... They wouldn't have time otherwise.

And it gets even more complicated when you're dealing with e.g. book fandom where a character doesn't actually have a set visual representation, but is still someone'e else's copyrighted character. It'd be feasible to claim said image was only loosely based on the canon character.

The written word is different because the vast, vast majority of characters exist in that form in some copyrightable way, be it as prose, manga, script etc. thus the "challenge" to the original is more direct.

Are you against charity fic auctions too?

I don't think there's anything that can be done about someone putting up a tip jar.

Or even charging people to write a prompt that they want you to write, even if you are playing in someone else's universe.

Kind of like how scalpers used to get around the law by selling you a tennis ball for $200 and throwing those concert tickets in as a complimentary gift. You just have to not be intimidated by the cease-and-desist letter from a lawyer.

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